Human Resource Blog

There are three separate issues here, and we will address them all: Bathroom usage, exceptions, and this employee.

First, OSHA regulations require that an employee be permitted to use the bathroom during their shift. There is no law or *civil right* that requires you to give employees access to the facility to use your bathroom 24/7.

The second issue is exceptions. Unfortunately, making an exception to company policy for an employee seldom works. You are trying to be generous, but it backfires. The employee recognizes the exception as a new policy, and continues to expect daily exceptions. By trying to be generous, you are actually sending mixed messages to this employee.

Under the circumstances, the policy that employees are not allowed on the premises until 15 minutes before their shift is reasonable, and should be enforced. The first time an employee shows up more than 15 minutes early, give a verbal warning. The second time, a written warning, etc. By *making an occasional exception* to the rule, the employee thinks they can always bend company policy. The average employee really does not understand whether *occasional* is 3 times per week or once per year. This type of *exception* is just too confusing for the employee.

So our recommendation is that you have a conversation with the employee and explain that from now on you will have to enforce the company policy with no exceptions. If he arrives more than 15 minutes early, he will be written up. You do not have to kick him out or deny bathroom usage, but after 3 writeups he will be terminated.

However, having said all that, we have concerns about this employee and perhaps the other employees who are sleeping onsite. Without knowing the specifics of your situation, it sounds like this employee could be homeless, and may be using your bathroom to clean up for work. If that is the case, the humane thing to do would be to allow the employees access to the bathroom if possible. You might also have the employee phone 211 from any landline phone (not a cell phone) to find out what services are available in your area.

Yes, there are a few items to keep in mind. Basically a pregnant employee must be treated like any other employee. Pregnancy is not a disability and should not change the way the employee is treated at work. Childbirth usually results in a disability lasting 4 to 6 weeks for a normal delivery and more for a c-section. Some pregnant women have a period of disability late in the pregnancy, and are forbidden by their doctor to work for several weeks prior to childbirth.

From an HR perspective, a pregnant employee is like any other worker and an employee on childbirth disability is like any worker on medical disability for a heart attack, stroke, cancer, etc.  

Your company is too small for the federal FMLA, the Family and Medical Leave Act, which applies to employers with 50 or more workers within 75 miles. Florida has no family leave law at the state level that would apply to smaller employers.

Because FMLA does not apply, there is no law that would require you to grant this employee paid or unpaid time off for prenatal appointments. You can handle this as you would any other absence.

Pregnancy and childbirth are not permanent disabilities, so you are not required to make any accommodations under ADA, the federal Americans with Disabilities Act. In fact, changing the employees duties in any way due to pregnancy may be seen as illegal discrimination.

Generally speaking the federal laws against pregnancy discrimination discussed below apply only to an employer with 15 or more workers. However, the best practice would be for a smaller employer to comply with them. Florida does not specifically have a law prohibiting discrimination based on pregnancy, but since only women get pregnant, such actions are often seen as illegal discrimination based on sex.

Federal law prohibits discrimination based on pregnancy, meaning you cannot take pregnancy into consideration when making decisions about promotions, pay, transfer, working conditions, etc.  This law also prohibits you from routinely requiring a fitness-for-duty certificate from a pregnant employee unless she has taken time off for pregnancy complications or states that she is unable to complete her duties.

Normally the employee is on short term disability for childbirth for 4 to 8 weeks, and may be physically unable to work (per doctors orders) for a few weeks prior to delivery. Under the federal PDA or Pregnancy Discrimination Act, you must treat pregnancy disability and childbirth disability like any other short term disability. If your company would provide benefits such as paid leave or continued group health insurance coverage to an employee who missed several weeks of work due to cancer or a heart attack, you must do the same for a pregnant employee. However, if you do not provide any benefits for a medical condition, then you are not obligated to provide any benefits to a pregnant employee.

After childbirth, you should not allow the employee to return to work until she has a doctors release to do so. If you do, any complications could become a workers comp claim.

From an HR standpoint, if you would terminate an employee who missed 4 weeks of work due to a heart attack, you can terminate this employee when she misses 4 weeks of work due to childbirth disability. Many small employers would permit the worker to take 6 to 8 weeks of unpaid leave and return to her job. Others would terminate the employee when she misses a few weeks of work. Be aware that you are setting a precedent and what you do for this employee generally you must do for other pregnant employees in the future.

The answer is: that depends on whether your timeclock is set up to round time in and out or not.

Generally speaking, both the federal and New York minimum wage laws require that an employee be paid for all the time worked. Whether an employee punches in an hour early or 5 minutes early, if he goes to work you must pay him for that time. You can discipline or terminate the employee for clocking in early, by you must still pay him for the time worked.

If the employee clocked in early and simply stood around chatting or drinking coffee instead of working, then he would not be entitled to payment for that time. However, be cautious with this. Things like walking to the work station, finding a pen and turning on the computer count as work time.

However, it is legal under both federal and New York law to set up your timeclock system so it automatically rounds the punches, as long as the rounding is in the employees favor 50 percent of the time. Many employers use the 7-minute rule for rounding to the nearest quarter hour, so that when an employee clocks in at 7:52, it is rounded to 7:45. When an employee clocks in at 7:53 or later, it is rounded to 8:00. Using this system, an employee who clocked in at 7:55 and out at 5:05 would be paid from 8 am to 5 pm.  

It would not be legal to set your time clock so that it rounded 7:45 to 8 am, and rounded 5:15 to 5 pm. Many newer payroll systems will do this, but it is not legal.

It is also legal to use a system that rounds the time worked to the nearest 6 minutes, or 1/10 of an hour. But again, the sytem must round 4 minutes to 0.1 hours, whether that results in the employee being paid more or not. Using that system, the employee in your example worked 8.2 hours that day.

You do not mentio which state you are in, and it makes a big difference. There is no federal law that requires meal breaks for an employee in general industry. However, nineteen U.S. states have laws that require meal breaks for almost all employees.

Since you mention 7.5 hours, you may be in Illinois. If so, here is your answer: Illinois law requires that the employee be given a meal break of at least 20 minutes on a shift of 7.5 hours or more. The break can be unpaid if the employee is relieved of all duties. Some states permit the employee to decline a meal break, as long as that is done in writing. Illinois does not, so when this employee works straight through, you are breaking the law. Yes, you can discipline or terminate any employee who does not clock out for a required meal break. This would be true, even if you were in a state without a break law.

Meal break laws are different in other states. If you are not in Illinois, please post an additional question that mentions your state.

Texas has one of the toughest payday laws in the nation, requiring that an employee who is discharged must be paid within 6 days. The law specifically states that when a paycheck is mailed, the employee has been paid on the day the check is received by the employee — not on the day the paycheck is mailed. For this reason, the employer must make arrangements to have the check delivered on or before the 6th day after termination. This usually means overnighting the check to the employee if requested.

The employee is also considered paid if he picks up the check at the place of employment where he used to work.

In order to meet this 6-day rule, some Texas employers are using the same method used in California. The employee can be suspended without pay for several days, and terminated only when the paycheck has been prepared and is available. In this way, the employer can pay the worker the same day he or she is terminated.

Read more about this at: http://www.statutes.legis.state.tx.us/Docs/LA/htm/LA.61.htm